The main legal point established is that the writer of a document can be regarded as an attestor based on the facts and circumstances of the case, and the applicability of res judicata depends on the rights of the parties in the previous suit.

1. The plaintiffs are purchasers of the whole or part of the equity of redemption in certain properties. They executed a mortgage for a period of 9 years to one Karuppa Udayan which authorised him to redeem an alleged prior mortgage in favour of the family of defendants Nos. 1 to 7. He obtained a decree for redemption against that family but failed to execute it. The plaintiffs were also impleaded as defendants in that suit (0.S. No. 388 of 1906) as persons having an interest in the mortgaged property. The plaintiff subsequently paid off Karuppa Oodayans mortgage. They now seek to redeem the mortgage in the defendants favour. The original mortgage deed has not been produced by the defendants, but. the plaintiffs have put in Ex 1 a registration copy of it. The defendants denied the mortgage set up by the plaintiffs and contended that they were themselves the owners of the property. An issue was therefore framed in these terms" whether the plaint mentioned mortgage is true." Both the lower Courts have held it proved. Two contentions have been argued in second appeal. First that the mortgage is invalid in law because it was not attested by two witnesses but only by one witness and also because it is in any event not proved that two witnesses witnessed the execution of the mortgage deed. Secondly, that the suit is barred by the rule of res judicata in consequence of the previous suit of Karuppa Odayan (O.S. No. 388 of 1906). With regard to the first contention the first point is whether the writer of the document Veerabudra Pillai can be regarded as having attested it. Mr. Srinivasa Aiyangar the learned Vakil for the appallant contends Veerabudra did not sign the document as an attesting witness, but only as its writer. It is true that the mere statement by the writer of a document that he wrote it cannot be regarded as an attestation of it by him. The question whether, when the writer has signed his name below the executants, he can be regarded as an attestor himself must depend on the facts and circumstances of each case. See Radhakishen v. Fateh Alt Ram (1898) I.L.R. 20A 532 where the writer was taken to be an attestor and Banu v. Lakshman Bow (1908) I.L.R. 33 B 44 where he was not so regarded as the statement by the writer that he wrote the document was a part of the document itself and was made above the signature of the executants. It is not necessary that the writer should describe himself as a witness, Bryan v. White (1850) 2 Rob. 315 or that there should be a testimonium clause; Burdett v. Spilsbury and Skinner v. Spilsbury (1843) 10 CL and Fin. 340. It must no doubt appear that he intended to attest the execution but where he subscribes his name at the time of execution, it would not be improper to presume such intention. We are at some disadvantage in deciding the question in this case, as we have not the benefit of seeing the original. But this disadvantage must be put down to the defendants conduct in not producing it. What appears from Exhibit L. is that after the executants signature two persons signed it, Kuppudayan and Veerabadra. Before Kuppu-dayans name we have the expression (Editor: The text of the vernacular matter has not been reproduced. Please write to know " used no doubt to denote the fact of attestation by the person to whom the expression refers. We cannot say from Exhibit L. that the expression was intended to refer only to Kuppudayan and not to the writer Veerabudran also. The fact thai Veerabudran has signed his name is as already observed not without importance in deciding the question whether it was not intended to make him an attestor. It is hardly necessary to observe that the description of him as the writer of the document cannot show that he was not also an attestor. We are of opinion that we must hold on the materials avail, able to us that he signed the document as an attestor.

2. It is next urged that it is not proved that Veerabudra was present at the execution of the mortgage, and